Guardianship of Minors

Overview
The Judge of the Probate Court of the county of the domicile of a minor having no guardian has the power to appoint a temporary or permanent guardian of person and/or conservator of property, or both, of such minor.

If the minor is over 14 years of age before the guardian is appointed, the Judge of the Probate Court is required to follow any selection made by the minor, provided the selection is a judicious one. The selection once made cannot be changed by the minor, except by showing cause for the removal of the first guardian.

The Probate Court has no jurisdiction in cases concerning loss of custody by a parent or guardian due to cruel treatment, abandonment, or immoral conditions.

There is no authority vested in the Judge of the Probate Court to displace a parent as guardian of the person of a minor. Thus, the Judge of the Probate Court cannot appoint a permanent guardian of the person of a minor with living parents, unless the parents’ rights have been terminated.

Guardians of minors fall into the following general classifications:

Natural Guardians
Unless otherwise provided by law, if both parents are alive, either is the natural guardian of the minor child. If the parents are legally separated or divorced, the custodial parent is the Natural Guardian.

Testamentary Guardians with Letters
A Testamentary Guardian is a guardian of a minor appointed by the will of the minor’s parents. Every parent may, by will, appoint a conservator for the property left to his minor children under that will. Every parent may also, if he is the last parent to survive, appoint by will a conservator over the minor’s property and a guardian over the minor’s person.

Guardians of Person
A Guardian of the Person is defined to be one who has been lawfully invested with the care of the minor whose natural guardian is dead or has relinquished his or her parental rights. The appointed guardian is considered as standing in the place of the natural guardian for the sole purpose of the care and maintenance of the minor.

Conservators of Property
In the event a minor possesses property and there is no natural guardianship designation made, a Conservator of Property must be appointed to take charge of and secure any such property for the minor and to hold such security until minor reaches the age of majority.

Guardians of Both Person and Conservator of Property
These are a combination of the above listed classifications.

Guardian Ad Litem
Whenever a minor has an interest in any litigation pending in any court in this state and has no guardian, or his/her interest is adverse to that of the guardian, such court may appoint a Guardian Ad Litem who is responsible to the minor for his conduct in connection with the litigation in the same manner as if he were a legally qualified guardian. The Guardian Ad Litem is liable to the ward for any damages which may result from any culpable omission or negligence on his part. The appointment of a Guardian Ad Litem is a right inherent in every court, not the probate court alone.

Standby Guardian
A parent or legal guardian of a minor child may sign a document designating another person to serve as Standby Guardian for the minor in the event the parent or guardian is determined to be unable to care for the minor due to the parent’s or guardian’s physical or mental condition or health including a condition created by medical treatment.

Temporary Guardian of Minor
An appointment of a Temporary Guardian of the person of the minor may be ordered when need is alleged by the person having actual physical custody of the said minor. However, no temporary guardian may be appointed unless proper notice is given to the natural parents/guardians or if any objection is filed by a natural parent/guardian.

Temporary Substitute Guardian
Upon its own motion or on the petition of any interested party, including the ward, the court may appoint a Temporary Substitute Guardian for a ward if it appears to the court that the best interest of the ward requires immediate action. The Temporary Substitute Guardian shall be appointed for a specified period not to exceed 120 days.

Temporary Substitute Conservator
Upon its own motion or upon the petition of any interested party, including the ward, the court may appoint a Temporary Substitute Conservator for a ward if it appears to the court that the best interest of the ward requires immediate action.